Liability for Wrongful Deprivation of Liberty: Malice and Police Privilege

2020 ◽  
Vol 24 (2) ◽  
pp. 175-201
Author(s):  
Elspeth Reid
Keyword(s):  
Police Officers ◽  
Criminal Procedure

Infringement of liberty has long been regarded as a delict which requires to be compensated, but public officers may in some circumstances be protected against liability where freedom has been “lawfully abridged” in conformity with the rules of criminal procedure. However, the boundaries of this form of privilege have not always been delineated with clarity. This article will argue that they remain unclear following the Outer House decision in Whitehouse v Gormley. In particular it questions the basis for requiring the pursuer to prove malice where a claim is made against police officers for unlawful detention or arrest.

scholarly journals Arrest on Reasonable Suspicion and Credible Information: Policy and Practice in Bangladesh

2017 ◽  
pp. 92-108
Author(s):  
Hussain Mohmmad Fazlul Bari
Keyword(s):  
Human Rights ◽  
Police Officer ◽  
Police Officers ◽  
Criminal Procedure ◽  
Information Policy ◽  
Policy And Practice ◽  
High Court ◽  
Holistic Review ◽  
Reasonable Suspicion ◽  
Credible Information

In Bangladesh, a police officer has the discretion to arrest an individual on the pretext of “reasonable suspicion” and “credible information" even without a warrant of arrest from the Magistrate. Though there are statutory and constitutional safeguards to protect liberty, security and human rights of the arrestee, practically there are numerous allegations of misuse or abuse of Section 54 of Code of Criminal Procedure 1898 by the police officers. High Court Division (HCD) in ‘BLAST HCD case’ and ‘Saifuzzaman Case’ rightly denounced all sorts of such abuses. HCD held that some provisions were, to some extent, inconsistent with the Constitution and also recommended for amendment of those questionable provisions. HCD also provided some directives to be followed while applying those existing provisions for arrest until such laws are modified. However, after rigorous hearing for about 12 years, Appellate Division (AD) dismissed the appeal preferred against BLAST HCD judgment. While AD concurred with the observations and findings of the HCD, it found recommendations and directives of the HCD as being either redundant or an exaggeration. In view of the observations of the AD, the legislature should also make a holistic review of Code of Criminal Procedure.

scholarly journals GROUNDS FOR ANIMAL RESCUE PURSUANT TO ARTICLE 7(3) OF THE ANIMAL PROTECTION ACT OF 21 AUGUST 1997 IN REGARD TO THE INSTITUTION OF A COLLISION OF DUTIES UNDER ARTICLE 26 § 5 OF THE CRIMINAL CODE

Probacja ◽  
2021 ◽  
Vol 4 ◽  
pp. 15-34
Author(s):  
Piotr Zakrzewski
Keyword(s):  
Police Officers ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Law Enforcement Agencies ◽  
Main Research ◽  
Animal Protection ◽  
Animal Rescue ◽  
Research Problems ◽  
Principle Of Proportionality

The article discusses the conditions for the emergency receipt of animal from the owner in accordance with Art. 7 sec. 3 of the Act of August 21, 1997 on the protection of animals and indicates the need to enrich them with the premises for excluding criminal liability under Art. 26 § 5 of the Penal Code. The main research problems of the study are the premises of the proper and legal emergency receipt of animal from the owner within the meaning of Art. 7 sec. 3 of the Act, including an indication of when such behaviour is legal and when it is illegal, and a detailed specification of the scope of responsibilities of the person who performs the collection of the animal towards the owner of the received animal. According to Art. 217 of the Code of Criminal Procedure in connection with Art. 220 of the Code of Criminal Procedure only law enforcement agencies, including the prosecutor, police officers and other bodies authorized by the law, may search the apartment / land. Authorized representatives of a social organization whose statutory purpose is to protect animals do not have this competence, therefore they are required to cooperate with police officers in the scope of searches. The article shows that in the event of the emergency receipt of animal from the owner in accordance with Art. 7 sec. 3 of the Act, in the absence of Police officers and with the opposition of the owner of the apartment / land, there is no violation of the legal interest of protection of the home if the perpetrator acts in accordance with the principle of subsidiarity and the principle of proportionality underlying Art. 26 § 5 of the Criminal Code.

scholarly journals Contribution to defining integrity testing in police: Normative aspects

2020 ◽  
Vol 54 (2) ◽  
pp. 591-610
Author(s):  
Darko Marinković
Keyword(s):  
Police Officers ◽  
Criminal Procedure ◽  
Comparative Law ◽  
Public Authority ◽  
Civil Servants ◽  
Special Relationship ◽  
Legal Regulations ◽  
Police Powers ◽  
Integrity Testing

Integrity of an individual means their preparedness and capability to resist challenges which bring to the fore personal above general interests. From the aspect of work of civil servants who perform public authority, the integrity is in special relationship with corruption - the more integrity means less corruption and vice versa. As an investigative method, in the majority of cases integrity testing refers to police officers and it makes an integral part of a (new) methodology of suppressing corruption within their own ranks. In addition to revealing corruptive activities and testing legality of police officers' conduct, integrity testing can be used to assess the quality of use of police powers. Although integrity testing has been in use in comparative law for several decades, it was introduced into Serbian legislation in 2016, by adopting the Law on Police. Initially impotent legal regulations required fast amendment, which suggested that integrity testing concept had not been understood well in our country. The paper defines the purpose and essence of integrity testing as an investigative method, it determines various modalities of its application, it presents comparative regulations and analyses normative solutions in our country. Special attention is directed at internal and external aspects of application of integrity testing results, particularly their significance in criminal procedure.

Bulgarian Criminal Procedure: The New Philosophy and Issues of Approximation

2006 ◽  
Vol 31 (1) ◽  
pp. 45-79
Author(s):  
Gergana Marinova
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Police Officers ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
European Convention ◽  
Vast Number ◽  
House Arrest ◽  
The Republic ◽  
New Institutions

AbstractThe Bulgarian legal system forms part of the continental legal family and shares the main features of continental law. One of them is the codification of the main branches of law, among which is Criminal Procedure. In Bulgaria—as in all European countries—the Code of Criminal Procedure (CCP) is the main source of procedural rules of law. It was adopted in 1974 and entered into force in 1975; it was notable in its similarity to the CCP of the Soviet Union.Since 1975, it has been subjected to a vast number of amendments, most of which were introduced after 1990 as a consequence of radical changes in the Bulgarian political, economic, and legal system. Some of the amendments to CCP have brought the criminal justice system in line with the new 1991 Bulgarian Constitution and with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)—ratified by the Republic of Bulgaria in 1992—as well as with other international acts and obligations, signed or undertaken by Bulgaria. Other amendments have provided for conceptually new institutions, unknown prior to this period in the development of Bulgarian procedural theory and practice.In short, Bulgarian criminal procedure has—since 1990—been undergoing a period of major reform, the most significant expression of which is to be seen in amendments to CCP, adopted in 1999. They represent what is called a "new philosophy" of criminal procedure. The basic elements thereof are:— instituting judicial control over investigative acts and coercive measures affecting fundamental human rights (detention, house arrest, committing a person to a psychiatric hospital for examination, prohibition against leaving the country, searches, seizures, etc.);— speeding up and simplifying the criminal process;— introducing more adversarial elements into judicial proceedings;— introducing police investigation as an alternative to preliminary investigations under which most criminal offenses would be investigated by police officers through more informal police investigative procedures than those of the more formal preliminary investigation.

Enhanced Rights for Detained Persons

2020 ◽  
Vol 4 (1) ◽  
pp. 89-108
Author(s):  
Ewang Sone Andrew
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Police Officers ◽  
Justice System ◽  
Criminal Procedure ◽  
Full Potential ◽  
Habeas Corpus ◽  
The Rule Of Law ◽  
Procedure Code

The incorporation of habeas corpus and bail in the Cameroonian Criminal Procedure Code has not only entrenched them in law, but has also widened and deepened their scope, with a view to obtaining, as far as possible, the respect for human rights and the rule of law in order to ensure a more functional criminal justice system in Cameroon. The incorporation of habeas corpus and bail in the Cameroon criminal trial process will restrain the arbitrary and illegal use of the powers of the judicial police officers and ensure respect of human rights. Although there are some challenges in the application of habeas corpus and bail such as misuse of the remedies by some overzealous authorities, defiance of court orders in the enforcement of the writ of habeas corpus by administrative authorities, and erosion of confidence in the Judiciary, there is optimism in the conscious efforts being made to ensure that habeas corpus and bail are properly applied so that the Cameroonian Criminal Procedure Code attains its full potential.

scholarly journals Regulation of powers regarding the inquiry in criminal procedure

2021 ◽  
Vol 1 (1) ◽  
pp. 265-271
Author(s):  
Alina Harkusha ◽  
Yevheniya Pterychenko
Keyword(s):  
Police Officers ◽  
Scientific Literature ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Criminal Offenses ◽  
National Police ◽  
Comprehensive Study

The article deals with a comprehensive study of the regulation of the powers of the subjects of criminal proceedings who carry out inquiries. The paper considers the approaches expressed in the scientific literature to understand their essence and place in the system of subjects of criminal proceedings. The issue related to the method of determining the proceedings of the subjects authorized to carry out pretrial investigation of criminal offenses is considered. The authors reveal the peculiarities of the exercise of the powers of the coroner and police officers of other units of the National Police of Ukraine, which are authorized to carry out pre-trial investigation of criminal offenses. The coroner is a relatively new subject of criminal proceedings, the emergence of which is due to the introduction of the institution of criminal offenses. He has certain powers that allow him to conduct a pre-trial investigation of criminal offenses in the form of an inquiry. The article finds that despite some differences in the powers of the investigator and the coroner, there are similar features. These include the fact that both participants in the criminal proceedings are officials of bodies and units established by the CPC of Ukraine, although the list of officials authorized to conduct pre-trial investigation of criminal offenses and misdemeanors differs significantly. The authors consider it appropriate to make some changes to the national criminal procedure legislation, namely: Part 2 of Art. 39-1 of the CPC of Ukraine to supplement paragraph 6 as follows: "to carry out inquiries in criminal proceedings, using the powers of the investigator", in order to prevent confusion and facilitate the search for the necessary information on the official website of the Verkhovna Rada of Ukraine.

scholarly journals Forceful arrests: an overview of section 49 of the Criminal Procedure Act 51 of 1977 and its recent amendments

2017 ◽  
Vol 15 (2) ◽  
pp. 345
Author(s):  
Rinda Botha ◽  
Jo-Mari Visser
Keyword(s):  
South Africa ◽  
Police Officers ◽  
United States Of America ◽  
Historical Development ◽  
Criminal Procedure ◽  
The United States ◽  
Critical Discussion ◽  
The United Kingdom ◽  
Legal Position ◽  
Made In

The debate concerning the use of violence by the police force is an endless one. Section 49 of the Criminal Procedure Act 51 of 1977 serves as a framework for the use of violence by police officers during arrests in South Africa. While some hold the opinion that the powers of the police in this respect should be restricted, others  see the 2003 redefined  section 49 as a legislative guarantee of a suspect’s right to flee. Against this background this article has as its focus a critical discussion of the historical development of section 49 as well as the recent amendments of the same. The current legal position in South Africa is also compared with that in the United States of America as well as in the United Kingdom. Finally, certain conclusions and recommendations are made in order to enhance more favourable regulation of the employment of force in effecting arrests.

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